It is a basic principle of federal judicial power that an Article III court may not adjudicate a dispute without first verifying its subject matter jurisdiction. By the mid-1990s, however, every federal court of appeals had adopted the practice of hypothetical jurisdiction, which allowed a court to by- pass subject matter jurisdiction and enter judgment on the merits, where jurisdiction appeared difficult but the merits could be easily resolved against the party asserting jurisdiction. In 1998, the Supreme Court attempted to repudiate this practice. But the scope of the repudiation was not cleary delineated, and the Court left unresolved a number of issues and left intact several potential means of avoiding the repudiation. In this Article, Professor Idleman not only recounts the life and death of hypothetical jurisdiction, from its emergence and unprincipled expansion in the lower courts to its attempted interment, but also examines what these developments reveal about the nature and character of the federal judiciary. In addition to detailing the circumstances, merits, and possible scope of the practice's repudiation, the Article explains why the practice attracted the judicial following that it did, and why, despite the Court's efforts, the practice may persist in the jurisdictional decisionmaking of the federal courts. In so doing, the Article examines five possible techniques by which these courts may attempt to sidestep the repudiation. The Article also explores the deeper significance of both the doctrine and its repudiation, particularly in terms of the institutional responsibility and jurisprudential methodology of the Supreme Court.
Scott C. Idleman,
The Demise of Hypothetical Jurisdiction in the Federal Courts,
52 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol52/iss1/2